On 22 September 2020 The Supreme Court in the Civil Chamber, following a complaint by the plaintiff against the judgment of the District Court in the case of the exclusion from bankruptcy of funds from the European Union budget collected in an account held in a bank whose bankruptcy was declared bankrupt, decided to address the Court of Justice of the European Union with the following legal question:
Is Council Regulation (EC) No Regulation (EU) 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund (Official Journal of the European Union L, No. 210 of 31 July 2006, p.
25 as amended), of which in particular Article 2(5), Article 3(4)(57)(1), Article 70(80), and currently Regulation (EU) 1303/2013 of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No Regulation (EU) 1083/2006 (Official Journal of the European Union L, No.
347 of 20 December 2013, p.
320 as amended), of which in particular Article 2(15), Article 37(1), Article 66(67)(1), Article 74(1) and Article 89(1), it must be interpreted as precluding the regulation of national law which prevents a person who has received funds from the budget of the European Union from effectively investigating, by way of judicial exclusion from the bankruptcy of those funds, if they have been paid to a bank account held in a bank whose bankruptcy has subsequently been declared, or by national law which does not exclude those funds from the bankruptcy of a bankrupt bank.
The problem concerns the bankruptcy of the bank in which the requesting municipality had a bank account to which the cash was paid to finance the investment under the Union project. As a result of the bankruptcy of this bank, there was a problem with the legal nature of these measures.
Both the judge-commissioner, examining the application for the exclusion of funds from the bankruptcy and the courts of both instances, examining the mass exclusion lawsuit, considered that since these measures entered the assets of the bank and subsequently the bankruptcy (because of their payment to the bank account), it would not apply either Article 831 section 1 point 2a k.p.c.
in conjunction with Article 63(1)(1) Act dated 28 February 2003 (currently: t.j. Journal of Laws of 2020, item 1228 as amended), neither Article 70 and n. p. fell. This means that they are measures which enter into the bankruptcy and are not excluded from it.
Consequently, according to the position of the general courts, the claimant can only declare the bankruptcy of a claim in the form of payment of an amount of the same value.
The Supreme Court doubted whether the national rules which prevent the beneficiary from effectively investigating the bankruptcy of funds acquired from the EU for a specific purpose, or which do not exclude those funds from the bankruptcy, are in accordance with the provisions of the Union Regulations established, bearing in mind the purpose and nature of these grants.
Author: Bartosz Nawrot
Legal consultant with the law firm Russell Bedford Poland 2018.